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Error: Copyright Balance Not Found in United States' Special 301 Report

DEEPLINKS BLOG
April 30, 2015

Error: Copyright Balance Not Found in United States' Special 301 Report

The United States Trade Representative (USTR) has released its Special 301 Report for 2015 today, and true to form, it is another one-sided and harmful missive to the rest of the world that names and shames countries for not mirroring, or even exceeding, the United States’ restrictive copyright rules.

Earlier this year, we did a teardown of the Special 301 Report to highlight the flaws of their review process and to demonstrate the extent to which the USTR limits itself to the interests of Hollywood and a narrow band of established content industries. We pointed out that how it does not consider that there might be good reasons for other countries to have different copyright and patent rules than the United States, nor mention how countries could adopt flexibilities that exist in U.S. copyright and patent law. Those perspectives remain absent from today's release.

When something is missing from the Web, the server returns a “404 Not Found” error—so today we are releasing our own “Special 404 Report” to show what's missing from the USTR's coverage. In Special 404, we present case studies from Special 301 report's traditional watch list of countries: individuals from around the world who face barriers and challenges due to the IP policies that the USTR promotes, as well as artists and consumers who benefit and flourish under policies that the USTR determinedly warns against.

Breaking Down the New Special 301 Report

The 2015 Special 301 Report of the USTR report repeats a familiar pattern. An arbitrary group of countries that have important trade relationships with the United States are hauled up for a laundry list of supposed offences, with little rhyme or reason as to the grounds on which particular countries are included, and why similarly placed countries are excluded.

Other than that Ecuador and Kuwait have been elevated from the Watch List to the Priority Watch List, and that Finland has been removed (because the pharmaceutical patents that the United States had been complaining were not well protected are soon to expire anyway), there is no change in the group of countries included this year than from the previous years.

Some of the observations and accusations made in this year’s report include:

  • Italy, although not included on the Watch List, is praised for recently introducing a DMCA-like notice and takedown system for the removal of copyright material from the Internet. Under this system, rightsholders can obtain an order for removal of content from Italy’s Communications Regulatory Authority (Agcom). ISPs must comply by removing the content within three days, or face fines ranging from €10,000 to €258,000 ($11,220 to $288,800). This system fails to comply with the Manila Principles on Intermediary Liability, which require a court order for the removal of content.
  • Switzerland, although also not on the Watch List, is criticised for the continuing effects of a landmark 2010 court decision that protects users’ privacy by prohibiting copyright trolls from tracking the IP addresses of users accused of file-sharing, and using this harvested data as the grounds for a copyright lawsuit or shakedown.
  • Thailand is criticized for a Copyright Act amendment to which we earlier gave qualified praise, in that it shields Internet intermediaries such as ISPs from liability for hosting copyright-infringing content until a court order requires the intermediary to remove it. Chile is similarly criticized for its own intermediary liability regime, which also requires a court order before material can be removed.
  • Ecuador’s elevation to the Priority Watch List is on the basis that it has repealed its copyright law’s criminal enforcement provisions, which are the same kind of provisions that were used in neighbouring Colombia to prosecute Diego Gomez for sharing academic articles online. We tell Diego’s story in our 404 Report.
  • Several countries, including India, are pressured to introduce laws that would criminalize the act of camcording in a motion picture theatre. These special-interest laws are unnecessary given camcording a film would likely amount to a copyright infringement anyway, and camcording anything less—say, short clips for a movie review, or even a QR code displayed in a cinema advertisement—ought not to be precluded by such a blanket law.

This year, the emphasis on trade secret protection is as high as ever. A company’s trade secrets typically include business plans, internal market analysis, and manufacturing methods. But the USTR never provides a specific definition, and so the term can encompass a wide range of information that it encourages nations to protect with heavy-handed enforcement.

The USTR urges countries to enact new and higher criminal penalties for the “theft” of trade secrets. Yet the last leak of the Trans-Pacific Partnership (TPP) agreement’s Intellectual Property chapter revealed language on trade secrets that is so dangerously broad that it could be used to crackdown on journalists and whistleblowers who reveal corporate wrongdoing “through a computer system.” If this is the kind of language that the USTR holds as a minimum standard for enforcement, we should expect to see the agency to increasingly push for draconian rules that would threaten critical reporting published online.

The 2015 report also includes renewed emphasis on domain name disputes. The USTR calls for countries that manage their own domain names to ensure that U.S. trademarks are protected from being registered under those domains and that they can be recovered through an efficient non-judicial process. The model process referred to by the USTR, the Uniform Domain Name Dispute Resolution Policy (UDRP) is notoriously partial in favour of trademark holders and against legitimate third-party registrants. By no coincidence, the leaked IP chapter of the TPP also contained a provision calling for UDRP-style protections for trademark holders.

Global Trade Benefits from Balance, Not Bias

The USTR describes the Special 301 Report as “the result of an extensive multi-stakeholder process”; an example of the kind of misuse of the term “multi-stakeholder” that has resulted in it losing all meaning. Certainly, it is apparent that EFF’s submitted comments were not taken into account in any way, as the report is still as capricious as ever.

This was the motivation for us to release our own Special 404 Report on the same day, to provide an alternative perspective from the countries that are affected by the tough rules that the United States demands, or that have resisted imposing such rules in the interests of their own people. Until the USTR listens to the real experience of the countries it condemns, as well as the real of businesses and artists in the United States who have benefited from the other side of copyright, it will fail to promote what good IP policy can be in a digitally connected world.

Additional Resources:

Check out our Special 404 Report

Our submission to the USTR’s request for comments

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